A cautionary tower tale
In historic Medora, North Dakota, tourists can saddle up and ride into the North Dakota Badlands, just like Theodore Roosevelt in his formative years in the late nineteenth century. But unlike the former president, they can also phone home, call for help or even order a pizza while on horseback thanks to a cell phone tower on a bluff overlooking the Little Missouri River Valley.
On the heels of an action plan calling for stepped up enforcement of environmental and historical preservation regulations, the Federal Communications Commission appears to be making an example of a Western Wireless cellular tower in this area steeped in American pioneer history. The FCC concludes that “the tower on the bluff presents a modern intrusion that looms over these Historic Properties.”
The FCC says that it did not choose to make an example of the Medora tower and that the symbolism of cracking down on a tower in an area steeped in history about the first conservationist president is irrelevant. Those elements should not be lost on those in the wireless industry, however, neither should the knots of bureaucracy or the fact that even after construction a company can be liable for failing to adhere to the process. Ignorance of the process is no excuse.
In May, the FCC issued a legal notice stating that Western Wireless Corporation broke the rules when it built the tower that is visible from the Chateau de Mores State Historic Site, the de Mores Packing Plant State Historic Site, the Theodore Roosevelt Maltese Cross Cabin, the Peaceful Valley Ranch and other historic properties, some within one-quarter mile of the tower. These include National Register and National Register eligible sites, which is a part of the criteria the government can use for identifying places for protection.
First case of its kind
This is the first case in which the Commission has proposed a monetary forfeiture for an unlawful operation that stems from an apparent failure to comply with the Commission’s environmental rules, the FCC said, even if it is not an example or symbol. The Federal Communications Commission released a Notice of Apparent Liability for Forfeiture proposing that Western Wireless Corporation and its wholly owned subsidiary, WWC Holding Co. Inc., be held liable for a $200,000 forfeiture for operating radio transmitting equipment from an unauthorized location in violation of the Communications Act.
A monetary forfeiture is legal-speak for a fine, although the FCC finds a distinction in the language somewhere. Western Wireless, which provides service through its Cellular One brand, can pay the forfeiture or respond and ask that it be canceled or diminished. Western Wireless will respond too late for this article.
Mark Rubin, director of Federal Government Affairs with Western Wireless Corp., said he was preparing a response, and would have more to say when it is filed.
“Western Wireless is currently working with federal, state, and local agencies to address the situation,” he said in a written statement. “Western Wireless has been working diligently with these agencies for the past four years to ensure that the Medora antenna tower addresses all applicable environmental and Federal Communications Commission regulations.”
But FCC Chairman Michael Powell attached a statement that put some emphasis on the case: “I recently announced a comprehensive, proactive approach for addressing the Commission’s responsibilities in the communications tower-siting area. Enforcement action, where necessary, will be an integral part of this approach as demonstrated by our action today.
“As I described in the Action Plan, the siting of communications towers places a number of worthy, but competing, federal interests in tension — widespread deployment of advanced telecommunications networks, the protection of birds and endangered species, aviation safety, and the preservation of historic and cultural sites, to name a few. Balancing these interests requires cooperation from a number of interested parties — including state and federal agencies, Indian tribes, environmental groups, and the communications and tower industries.”
A key clause for Western Wireless in that action plan was Powell’s call to “enforce the rules swiftly and effectively to create incentives for parties to follow the required processes before construction.”
That is where Western Wireless fell short in the FCC’s view. The company did not go through the proper environmental reviews and file the appropriate environmental impact documents before installing the tower, according to the FCC’s notice.
But for its part, Western Wireless believes it did everything within reason and did not have to file environmental studies. The company went through a review by the local agencies with stakes in the outcome, and the tower is in an area frequented by tourists and townsfolk, not in the wilderness. Western argues that its environmental review indicated that construction and operation of the Medora site would not have a significant environmental effect. Only when the State Historical Society sent a letter to the FCC Wireless Telecommunications Bureau did the FCC become involved because the tower is “a visual intrusion into their setting.”
Murky law
If that is not murky enough, Andrea Williams, assistant general counsel with CTIA, said across the 50 states there are inconsistent rulings from state and local entities, as well as the state historical preservation officers, and the environmental agencies. Delays in each case can mean millions of dollars lost as well as the averse affects of no service.
There are also any number of legal questions that may have to be answered about the FCC’s authority under National Environmental Policy Act of 1969 (NEPA) and the National Historic Preservation Act of 1966, she said.
Williams is concerned that the FCC’s apparent disregard of the local authorities’ decision means that the local finding “is really irrelevant.”
The local process started with the governor of North Dakota asking for a wireless tower to serve a Western Governor’s Conference in Medora. Western constructed a 180-foot tower on a ridge overlooking Medora, near the sites that are listed or eligible for listing in the National Register of Historic Places. The FCC concluded that the tower affects these historic properties and that Western was required to obtain authorization before constructing its tower.
“The FCC tries to resolve these kinds of issues through informal mechanisms and it goes to that next step when those informal mechanisms don’t work,” said Lisa Fowlkes, assistant chief of the FCC Enforcement Bureau. “I don’t think there is some hook or anything new thing going on. It’s as simple as that.”
The FCC went through its procedures of trying to work out the problems without resolution, and found that it was time for enforcement.
“I think the bottom line is that the FCC always expects compliance with the rules,” Fowlkes said, while declining to speculate on what would happen if Western continues to operate the tower. “I can’t discuss what would happen if certain scenarios took place.”
Costly forfeitures loom
But the Notice of Apparent Liability warns that continued unlawful operation could mean increased forfeitures, initiation of a license revocation proceeding or both. So the FCC ordered Western to provide a sworn statement within 30 days regarding its plan to cease operation from the Medora site or to bring that site into compliance. It also reminded Western that it had to file an Environmental Assessment if any of its actions effect the environment.
The Commission could assess a forfeiture of up to $120,000 for each violation by a common carrier, or each day of a continuing violation, up to a statutory maximum of $1.2 million for a single act or failure to act.
There is a base forfeiture amount of $4,000 for operation at an unauthorized location. “However, a significant upward adjustment is justified in this case since Western’s violation continued for three and a half years after WTB informed Western that the tower ‘may have’ a significant environmental effect, and continues to this date. Western’s tower has had and continues to have a significant environmental effect on Historic Properties.”
“It is important that Western not be permitted to continue to benefit from its failure to comply with the environmental rules,” the FCC adds. So the company must file, a sworn statement describing its plans to cease operation at its Medora tower site or bring that site into compliance with environmental rules. The statement must be filed either with Western’s response to, or separately if it pays the proposed forfeiture.
Western constructed the monopole tower in August 1999. In November of that year, the State Historical Society of North Dakota, which is the State Historic Preservation Officer, submitted a letter to the Wireless Telecommunications Bureau complaining about the tower. The letter said the tower mars properties listed in the National Register of Historic Places and the State Register of Historic Places.
The feel of a site counts
The tower, according to the notice, introduces “an obtrusive incongruous element into a setting that otherwise retains largely the same feel that it had at the time the structures were built.” If a facility has an unmitigated adverse effect on one or more historic properties, the Commission has since at least 1974 viewed such a facility as having a significant effect on the environment.
In December 1999, the FCC’s Wireless Telecommunications Bureau warned Western Wireless that until the requirements of the Commission’s environmental rules are met, construction and operation of the facility might violate environmental rules and trigger forfeitures. The Bureau also directed Western to meet with the State Historical Preservation Officer to work the problem out.
Western continued to operate at the site. The Wireless Telecommunications Bureau worked with the company and the Historical Society to attempt to resolve the matter. When that was unsuccessful, the bureau referred the case to the Enforcement Bureau.
In October 2002, the Enforcement Bureau requested information about Western’s efforts to assess the tower’s effect on the environment and why it did not submit environmental impact studies and undergo environmental review. Western said that it complied in good faith with the Commission’s rules.
According to Western, the lack of cellular coverage highlighted the need for cellular service in Medora, and with the support of the mayor, it sought to improve cellular coverage. Western says that it now provides “high-quality” cellular service to Medora and portions of Interstate 94.
Western said it worked with the city and consulted with the National Park Service to develop three alternative tower sites. (The National Park Service has indicated that, at the time, it was unaware that the FCC had rules relating to the location of communications towers.) The city selected the current location, and the Theodore Roosevelt Medora Foundation, a local historic preservation group, provided the land. Western adds that the city selected the tower location as the alternative farthest from any historic properties without being located within the national park, according to the FCC’s notice.
Western says that it went through the local planning and zoning processes and the city council is charged with examining the possible effects of any proposed construction upon the historical integrity of the city. The entire city and the areas under its jurisdiction are zoned as Historical Integrity District because of the number of sites. The public was notified of the zoning application, and the community was given five days to file comments against the proposed tower. No one commented. The Zoning Board unanimously approved the application on June 1, 1999.
With the city’s review and approval, Western believed the tower to be excluded from FCC environmental processing on historic preservation grounds. After the tower was constructed, Western learned that the Historical Society had raised concerns with the Commission. When it became aware of the concerns, Western says, it tried to obtain public comment and offered mitigation measures. None of the proposals satisfied all parties, however.
In January 2003, the Enforcement Bureau challenged Western’s authority to provide service from the Medora tower. Western was also told to explain steps it took to comply. Since the FCC believes the tower has a significant environmental effect, Western does not have the authority to continue operating the tower.
“It is undisputed that Western constructed its tower near, and in plain view of, sites that are listed, or eligible for listing, in the NRHP,” the Enforcement Bureau says. “It is also undisputed that the Historical Society did not conclude prior to construction that the tower would not have an adverse effect on Historic Properties.”
The company should have sought FCC approval before building the tower, the commission says.
“The fact that the City Council and others may have considered historic preservation issues, or that Western may have worked cooperatively with the (Wireless Telecommunications Bureau) and others to try to resolve the problem after construction and operation of the Medora tower, has no bearing on the underlying violation in this case, which occurred before any such cooperative efforts and has continued since. In particular, we note that the Zoning Board’s approval of Western’s application is irrelevant to whether the tower has a significant environmental effect under the Commission’s rules.”
That statement in particular worries CTIA attorney Williams.
“That is a concern that I have reading the analysis,” she said.
Local authorities appear to be irrelevant.
In part, Western also indicated that direction by the FCC staff made it feel it was on the right course.
“Finally, even if Western would have benefited from the filing of an (environmental assessment) but chose not to do so in reliance on the staff, such reliance was at Western’s risk,” according to the notice.
This is a problem that goes on in neighborhoods across the country. For example, a neighborhood group is threatening a lawsuit in a campaign against a proposed cellular tower in the Boston’s Glenwood Cemetery, The Boston Globe reported May 28. The Glenwood Neighborhood Association, an informal committee based in a rural, dead-end street bordering the cemetery, has accused Verizon Wireless of threatening the historic nature of the burial ground.
The 20-acre cemetery, sandwiched between protected land and a Massachusetts Audubon Society reserve, houses the remains of author Horatio Alger, whose novels at the end of the nineteenth century earned his name a place in American lexicon as the symbol of entrepreneurs fulfilling the American Dream.
Local residents not only said the tower would endanger low-flying birds and lower property values, but they also said that it would attract truck traffic to a narrow road where young children live. They expressed concerns about “the long-term effects of exposure to radio waves.”
It appears that it will take the “pluck and luck” of one of Horatio Alger’s rags-to-riches characters to overcome the founded or unfounded fears, the local concerns that seem trivial outside a particular neighborhood, environmental and historical complexities, and anticipating the government’s mood on enforcement if tower operators expect to deploy new services.
ENVIRONMENTAL AND HISTORIC PRESERVATION ACTION PLAN
Statement by FCC Chairman Michael K. Powell • May 1, 2003
In recognition of the importance of deploying communications services consistent with the mandates of National Environmental Policy Act of 1969 (NEPA) and the National Historic Preservation Act of 1966 (NHPA), I have asked Commission staff to develop the agency’s first comprehensive strategic plan to improve our ability to protect valuable historic and environmental resources, while at the same time accelerating the process of deploying necessary communications infrastructure. One of the Commission’s critical responsibilities is to manage the expansion of communications infrastructure in a way that best preserves our Nation’s environmental and historic resources. Additional communications towers and other infrastructure improvements are critical to the rapid deployment to the American public of ubiquitous, advanced, and competitive communications services, as well as for public safety and homeland security. Although the Commission’s statutory obligations are longstanding, I have recently concluded that the expanding need for telecommunications infrastructure requires the Commission to take a more proactive approach to these issues.
As part of this action plan, I intend to work with my colleagues to: (1) initiate a series of proceedings designed to enhance our expertise in environmental and historic matters and modify our rules as necessary; (2) work with the industry and government to develop more efficient and effective communication; (3) examine our processes for streamlining opportunities; and (4) enforce the rules swiftly and effectively to create incentives for parties to follow the required processes before construction. This plan highlights the Commission’s commitment to carry out its responsibility for communications deployment, environmental protection, and historic preservation.
The Federal Communications Commission has specific responsibilities pursuant to NEPA, NHPA, and other related statutes to evaluate the impact of its actions on the quality of the human environment. These responsibilities most prominently come into play regarding the construction of communications towers and their impact on the environment and historic sites, including Indian historic, cultural, or religious sites.
I look forward to working with my fellow Commissioners, Tribal governments, State and Local government organizations, and my counterparts at other Federal agencies to implement these important initiatives.
Key points
- Increase Agency expertise and modify rules as needed.
- Consider a Notice of Proposed Rulemaking implementing a Nationwide Programmatic Agreement for review of effects of communications facilities on historic properties.
- Consider a Notice of Proposed Rulemaking addressing rules regarding human exposure to radiofrequency electromagnetic fields.
- Initiate a Notice of Inquiry to assess the impact of communications towers on migratory birds.
- Improve transparency and communication with external parties
- Develop a Memorandum of Understanding with Tribal representatives addressing best practices for Tribal consultation between the FCC and federally-recognized Tribes on a government-to-government basis.
- Working with Tribes, develop a database that would help tower constructors more easily identify which Tribes may have an interest in a particular location under consideration as a possible tower site.
- Expand outreach to federally-recognized Tribes to ensure that we respect and include tribal interests as we move forward. Develop related training program for FCC personnel.
- Establish liaisons with the staff of other federal agencies that are consulted on, or may have an interest in, environmental and historical preservation review. Create points of contact within the FCC for outside parties to coordinate these activities.
- Work with U.S. Fish and Wildlife Service (FWS) to streamline, standardize, and clarify consultation process required under the Endangered Species Act. Consider development of a public agreement to guide these interactions and deliberations.
- More efficient and effective Commission processes
- Examine current processes for streamlining opportunities.
- Increase staff resources to address both historic preservation and environmental impact issues – recently created new Cultural Resource Specialist position to focus on Historic Preservation issues. Consider retention of staff biologist to address avian issues.
- Consider user-friendly improvements to Commission website to facilitate access to information.
- Vigorous enforcement
- Licensing bureaus to refer appropriate cases to the Enforcement Bureau.
- Swift and effective enforcement to provide an incentive for parties to follow required processes before construction.
Enforcement to complement, but not supplant negotiation.